As Australia’s Safe Work Month closes, the media is focussed on the four fatalities at Dreamworld theme park in Queensland. That situation is complicated as, although the incident is being investigated partly under Work Health and Safety laws, the decedents were visitors to the workplace. On the other side of the continent in Perth, prior to the Dreamworld incident, was another workplace fatality, this time of a worker. Her death was no less tragic and deserves not to be forgotten, particularly as it links to other occupational health and safety (OHS) and labour issues.

“Marianka Heumann, who was on a working holiday in Australia and had been employed at the site for three months, fell 13 storeys down a ventilation shaft at the Finbar and Hanssen development on Adelaide Terrace on Monday afternoon. She was rushed to hospital but could not be saved.”

Following, ostensibly, the Four Corners exposé of labour hire exploitation in Australia last year, the Victorian Government established an inquiry. That Inquiry’s final report has been released with lots of recommendations, several pertaining to occupational health and safety (OHS). The Government’s media release response is HERE.

The main recommendations related to OHS are:

I recommend that the Model Work Health and Safety Act approach to regulating labour hire relationships be adopted in Victoria. In the absence of Victoria adopting wholesale the approach under the model laws, I recommend that Victoria adapt an approach which matches the substantive provisions under the model laws in this regard.

On October 7 2016, Victoria’s trade union movement held a Young Worker Conference. The major public statement from that conference was the launch of a survey report called Young Workers Health and Safety Snapshot. The report has received some mainstream press which is not unusual for this type of trade union member survey. Almost twenty years ago a similar type of survey from the Australian Council of Trade Unions (ACTU) launched the issue of workplace bullying into the Australian consciousness.

The media article mentioned above focussed on the sexual harassment elements of the survey report which is unsurprising as sexual harassment cases have been a mainstay of workplace relations reporting but it overpowered some of the other more recognisable occupational health and safety (OHS) issues.

The recent Victorian report found that:

“Young people are beginning their working lives without the education needed to identify workplace bullying and health & safety hazards and their employers’ obligations to address them. Young people are not being equipped with the tools to confidently question unsafe practices in the workplace and confidently raise issue when needed. This has led to a normalisation of unsafe work practices as the status quo.”

Where is a young worker to receive such information? The school curriculum is already bursting with subjects and there is constant pressure for more. As has been written elsewhere in this blog, school-based bullying is significantly different from workplace bullying due to the very different power relationships between a student and their teacher and a worker and their employer different laws, different rules, different environment, different culture…

Students may receive some exposure to work through a placement or “work experience” but whether that person undertakes a full set of safety inductions is unlikely. The process is usually one of supervision and workplace exposure. In such situations which, formally, only last five working days students may witness workplace bullying but their attention is on work tasks more than on the complex relationships that underpin work.

Employers have the responsibility for providing a safe and healthy work environment. What is not overtly stated in safety legislation is that this obligation is to every worker from their first day to the last. The employer and their managerial system is the principal source of OHS information for young workers. If the worker is in a unionised workplace, their health and safety representative is likely to play a role in this induction process but that is an increasingly rare situation in Australia.

The body of the Young Worker report offers a different take on the prevalence of workplace bullying. It asked

“Have you experienced bullying or harassment from any of the following?”

The categories were Customer/Client, Boss/Supervisor, Co-Worker, None of the above, or I’d rather not say.

Harassment

Thirty-nine percent said none of the categories listed. Does this indicate that bullying is less of an issues than is often made out? And are workers really getting bullied by clients or are they being harassed? It is sloppy research to combine harassment and bullying in survey questions as bullying and harassment are two different interactions although the mental health impacts on workers may be similar.

This overlap of harassment and bullying continues to complicate OHS interventions, has existed for some time and is continuing to be ignored. (This blog wrote about the issue in 2011) Safe Work Australia (SWA) defines workplace bullying as

“Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.”

It is difficult to see that this definition applies to the relationships between workers and customers due to the requirement for repetition however it may be possible. More likely the client/worker relationship may involve harassment but clarity on how workplace harassment is determined is more difficult. Sexual harassment is discussed in the SWA guide:

“The type of behaviour occurring may need to be determined to develop an appropriate response. For example, if the behaviour involves physical violence or what appears to be unlawful discrimination or sexual harassment, whether it is repeated or not, it will require a different response to workplace bullying.” (page 17)

Given that the issue of “incivility” has been gaining ground as a workplace psychosocial hazard, it may be a useful to consider this in client/worker relationships. However harassment at work may involve stalking and cyberbullying. This mess of potential workplace hazards makes it even more important for surveys like the one conducted with young workers to be very clear on what is being asked so that the responses address the intent of the question. The survey question above on workplace bullying is unhelpful.

Incident Reporting

Another of the findings is

“Health & safety issues and workplace injury or illness are underreported. 1 in 3 young people who sustained workplace injuries or illnesses did not report them to their boss or supervisor. When asked to perform an unsafe task more than half will do it rather than raise it with their boss or supervisor. Young people reported fear of retaliation – such as losing their shifts or not having their contracts renewed – and fear that health & safety issues or workplace injuries or illnesses would not be taken seriously by their employer. Taking action to report an incident is seen as an extraordinary course of action, rather than the commonplace response to hazards.”

Underreporting of injuries is a perennial problems at all levels of any workplace. If you report an injury, you are seen as careless, unthinking and/or untrustworthy and a failure. You feel like you made a mistake and that it is your fault. Maybe it is and maybe it isn’t but that should not be a relevant consideration in most OHS circumstances. The negative shameful feelings are most likely to appear in an organisation that does not understand their workers and their work practices. The managerial focus is likely to be on production outcomes, or deadlines, rather than on the quality of the work or the safety of their workers. Yet it is the managers and employers who are in charge of managing those deadlines and resourcing the production process.

It may sound naive but a production urgency in any work process is indicative of poor planning and poor preparation. Such a situation increases a range of business risks, including the encouragement the sacrifice usual safety practices. Workers should take responsibility for their actions but that is different from accepting the blame.

Some companies have instigated alternative incident reporting measures where an anonymous report can be sent to a senior supervisor if the incident report is discouraged, or not attended to, at the level of line managers and supervisors. Such systems are well-intentioned but only operate in industries or companies where there is a level of organisational maturity that can guarantee no repercussions on the reporter. This situation remains rare.

Incident reports are an important element of OHS but they are seen more as generators of unnecessary work instead of an opportunity to improve. This fear of being seen as a failure is a powerful emotion with which OHS needs to contend.

Refusing unsafe work

The report shows that almost 56% of young workers asked to perform unsafe work did so and that the remainder raised their safety concerns with a supervisor. The report gives emphasis to the first of the statistics but the statistics can be read positively as the number of workers raising concerns is considerably higher than one would expect. It would wonderful if this level of safety awareness was representative of the whole young workforce. Although the survey is not confined to trade union members as earlier surveys were, the level of safety awareness in the respondents is likely to be higher due to the manner the survey was conducted.

The statistics also do not indicate what the consequences were for those who raised safety concerns. Two respondents quoted say they were relocated and the issue remained and the other says they were fired (page 8)

Mental Health

Teenage can be a stressful time of transition into adulthood and, in many ways, work is an established path to progressing that maturity. The move from school to work can be equally disorienting as the daytime rules of one’s life over the last twelve or so years disappear, change or are tweaked. It is understandable that new work experiences may generate mental health issues and that relationship and family pressures may impinge on the workplace.

However, employers who target young workers are well aware of this transition and should have detailed and strong managerial processes to ensure that the young worker works well in their first job but are also set up for the rest of their working life. It may feel okay to discuss personal issue with a teacher you have known for over a decade or a parent you have known all your life but how do you talk about personal issues with your boss or manager? It can be a daunting experience but shouldn’t be.

According the Young Workers’ report

“Mental Health issues related to work are not correctly understood and dealt with as workplace health issues for which employers have responsibilities. Starting work is a significant developmental milestone for young people, but if the experience comes with stressors related to mental health its many benefits are undermined. Young people reported self-censoring the injury as they weren’t sure work-related mental health issues were valid workplace health issues, or they felt their employer would not see their issues as valid. Young people also cited precarious work, either through casual or temporary contract employment, as a trigger for stress and anxiety.” (page 3)

Older OHS professionals should take some responsibility for young workers being unsure of whether mental health is a valid workplace issue. The OHS profession has neglected workplace psychosocial hazards for decades and still remains unsure about how to incorporate them into their safety management systems. Unless mental health issues manifest themselves in visible ways, they remain largely invisible to employers, showing a fundamental misunderstanding on the psychology of workers. (This week is Mental Health Week in Australia which is campaigning on the mental health of youth, so there is likely to be some good advice in the press.)

The other issues raised – precarious work, etc – are likely to get some attention through the Labour Hire report that is currently awaiting release from the Victorian Government and the inquiry into WorkSafe Victoria’s enforcement strategies. Similar inquiries have occurred in other Australian States and will strengthen the calls for better interventions and additional funding. And, of course, there is the ongoing broad concerns over pay rates and safety conditions in a broad range of Australian workplaces like 7Eleven and others.

Sexual Harassment

The issue of sexual harassment was touched on above but one of the report’s findings addressed this issue specifically.

“Young people, particularly young women, report sexual harassment in the workplace is commonplace, unaddressed and preventable. Young people and particularly young women receive it from all directions – customers, bosses or supervisors and co-workers. Young women reported a normalisation of sexual harassment in the workplace, citing it as an everyday occurrence that was treated by employers as a ‘non-issue’. They also reported being placed in unsafe work situations which resulted in sexual harassment, such as working alone early in the morning or late in the evening.”

Sexual harassment, dignity, respect, objectification and discrimination are broad social issues that are being addressed in many ways. The workplace is part of society so there is some degree of overlap but the solutions to these concerns will not come through occupational health and safety but OHS can stop these social issues becoming worse through safety culture and organisational improvements.

OHS already has form in addressing the hazards identified in the last sentence in the quote above. No worker should be placed in a position of risk whether that is in the context of being alone or unsupervised. OHS regulators have long had Guidances and Codes about these risks but they have often been ignored as soon as the control measure includes additional cost or disruption, such as is likely to occur when buddying up or adjusting a roster to give safety equal or higher priority to productivity.

Recommendations

The Young Workers Centre has called on an improved high school curriculum on workplace hazards. Such calls have been made repeatedly by a range of OHS advocates for decades and they have rarely been taken up for several reasons including that the curriculum is already full. Curricula, in Government Schools at least, are determined by the various Departments of Education so this is where the major lobbying should be aimed. Schools are unlikely to give workplace bullying much attention when they need to address school- and cyber-bullying and school bullying programs are entrenched in many educational areas.

The Centre recommends

“Sexual harassment in the workplace must be specifically defined and recognised as a workplace health & safety issue by WorkSafe and other government bodies.”

This recommendation illustrates a fundamental misunderstanding of sexual harassment. As mentioned above sexual harassment is a consequence of a broad range of social and workplace factors that have existed for decades and will require a broad social movement. Trade unions have a tendency to believe that regulations can solve all the problems but regulation can only go so far, particularly on issues that may require generational change.

The trade union agenda may be more obvious when the rest of the recommendation is considered:

“State and federal governments must collect data on sexual harassment and gender-based violence in the
workplace so that resources for prevention are correctly allocated. The introduction of recognised Women’s Advocates in the workplace will raise the profile of sexual harassment as a workplace issue at the workplace level. Advocates would be entitled to training on gendered workplace health & safety issues and recognised as participants in consultation processes alongside other representatives.” (page 13)

Governments are already collecting what data is available but as with all workplace data, particularly if it is self-reporting, it is unreliable. The call for sexual harassment data collection will face the same under-reporting problem of more traditional injuries that the survey identified. There are also some lessons to be learnt by the Fair Work Commission’s bullying data which indicates that workplace bullying may not be as big an issue as some advocate or expected.

The call for “recognised Women’s Advocates” seems like a clear call for a different type of health and safety representative (HSR) with regulated training requirements. And why “recognised”? Recognised by whom? If sexual harassment is such a workplace issue, cannot this be handled with the cooperation of the current HSRs? If not, then the training of HSRs needs a substantial revision to accommodate this new generation of psychosocial workplace hazards.

Other recommendations include the introduction of

“…. a bullying code to improve employer [OHS] compliance …”

This is a surprising recommendation in some ways as trade unions know that Codes of Practice are just codes almost like the Pirates’ Code – “more a set of guidelines”. The Victorian trade union movement has been grumbling about the lack of a bullying code of practice ever since the employer advocates demanded that what was intended to be the first bullying code earlier this century was “downgraded” to guidelines and has remained that way ever since.

The Young Workers Centre also calls for an incident reporting system that supports anonymity. How is one expected to report a workplace bullying incident without identifying the bullied party? Is a WorkSafe inspector really expected to enter a workplace to investigate a bullying accusation from an anonymous report?

The only information that has been made available about this research to date is a fifteen page report which is not available publicly at the time of writing. It is hoped that the Young Workers Health & Safety Snapshot is just that, a snapshot, and that a more detailed body of research work and analysis is available and that this will be publicly available. This detail should be able to provide clarity on young worker perspectives and the realities in which they work, that is, the legitimacy of the perceptions.

The research should also provide justification for the recommendations which at the moment are under developed and seem to relate more to broader trade union safety campaigns than to the young worker survey responses.

As a contribution to the safety discussions in National Safety Month and Mental Health Week, it is useful but could have been so much more.

Law firms have been producing newsletters and case summaries for a long time. Ostensibly these are for marketing purposes but occupational health and safety (OHS) professionals have benefited from these potted histories and examinations, even though the perspectives are often limited to the legal precedents. Over the last few years though, law firms have been producing longer documents such as annual or mid-year reviews that go well beyond workplace safety. The latest of these has been produced by Corrs Chambers Westgarth.

By looking broadly at social, regulatory and economic pressures on Australia Corrs’ Mid-Year Review provides a useful context to OHS that safety regulators rarely do. Nor do government agencies, such as the Productivity Commission, although they try. Corrs has applied five themes to its current report:

Future Organisations: Digital Disruption & The Future of Work

Australia’s 21st Century Infrastructure Needs

The Public Sector Workforce

Social Enterprises, Social Impact Bonds & the Not-For-Profit Sector

Business Culture & Risk

It is important for companies to be up with the trends but there is also the risk that what is identified as a trend is really a fad. There is also a tendency to only assess the current circumstances in a narrow historical context. “Disruption” is a fashionable phrase at the moment, particularly in discussing technology’s effects on the ways of working. Corrs writes

“A report by the Committee for Economic Development of Australia (CEDA) suggests that technology will radically reshape Australia’s workforce in the next 10-15 years, with the jobs of up to 40% of the workforce being replaced by computers…” (page 12)

But it is important to emphasise the distinction between technology and computers. Computers, as we currently understand them, are a recent phenomenon but technology has existed for centuries. Technology has always involved change and change has always been disruptive to individuals and society. OHS professionals have accommodated change in their advocacy of continuous improvement and by introducing management of change (MOC) processes. The safety regulators have also spoken of the importance of one’s state of knowledge of hazards, risk and safety. Some professionals prefer a static state of knowledge, others continue to progress it.

“…splitting off functions that were once managed internally, to small business units that compete fiercely with each other.” (page 4)

Some have suggested that this creates new challenges for OHS but there seems to be more than a passing similarity to the longstanding safety issues associated with contractor management, going back to my earlier point about short or narrow memories of recent history. It may seem that this fissuring is more prominent at the moment but it can be argued that the increasing white-collar job structures was always going to lead to fissuring or even fracturing through the mechanisms of flexible working conditions, teleworking, and even work/life balance. People were looking for new ways to work that allowed them to not be anchored to the workplace as the core reason for existence.

Corrs writes about the contractor management issue as if it is a new activity but it is familiar to those OHS professionals who were operating in the 1980s and 1990s:

“Businesses sometimes establish workforces that are principally comprised of independent contractors
and labour hire workers on the basis that there is no requirement to take reasonably practicable steps to ensure their health and safety. That flawed assumption exposes the company to significant financial penalties for breach, and places its directors and officers at personal risk of custodial sentences and significant fines.

The same flawed assumption also means that workers who are not employees are less likely to work in accordance with credible safety systems. As a consequence, their own and their co-workers’ safety is likely to be put at risk. In those circumstances, the business may be in breach of its statutory duty to take reasonably practicable steps not to put the health and safety of ‘other persons’ (i.e. persons who do not have any workplace relationship with the business) at risk.” (page 17)

Many western countries have experienced very recent examples of harsh and extreme worker exploitation which, in many instances, have led to governmental inquiries – labour hire in Australia, (potential) courier driver rates in the UK. Several of these are examples of a readjustment in labour relations with the fissured workplace but should not be seen as a result of the fissuring as exploitation of workers is a centuries-old practice. The new economy provides a new opportunity for the exploitation that workers have often faced.

The OHS context of labour hire exploitation has been discussed repeatedly in the SafetyAtWorkBlog. Wages have been the major industrial relations focus in these inquiries and debates, primarily, because these are recognised as basic labour rights but the right to a safe and healthy workplace is just as basic.

Interestingly Corrs brings Class into the discussion, a perspective that is sadly neglected:

“Aside from the health and safety risks associated with automation itself, there will likely be significant risks associated with other consequential changes. These ‘change’ challenges will pose huge psychological risk for many in the middle class who have traditionally felt that their skills and expertise could never be automated.” (page 16)

This comment is a further illustration of the failure of the concept of safety-in-design in anything other than construction, and even that remains debatable. The point about the middle classes is intriguing both for its mention but also for the implication that it takes the middle classes to be effected for concern or outrage to occur.

The Corrs report includes some comments about the management of safety in Australian infrastructure projects (page 27) that is refreshing and honest compared to much of the nonsense and marketing spin in Lessons Learnt reports. Corrs emphasises the need for clear safety responsibilities and accountabilities, particularly when there are multiple players on the project.

Many readers may jump to the report’s chapter on Business Culture & Risk which is advised against. The Business Culture & Risk chapter focusses on three issues:

changing expectations about leadership and culture

workplace mental health; and

managing security threats.

On the first element, Corrs makes reference to the tension over the organisational cultures of the banking sector but says this about safety culture:

“Interestingly, our thinking about safety culture is far more developed than in relation to broader organisational culture. Academic works abound about safety culture, the safety regulators all issue guidance about how to develop positive safety cultures, and numerous safety culture ‘diagnostic tools’ are available. Safety culture focuses on the importance of an organisational culture that values workplace safety. Safety cultures are not optional: there is always a safety culture and it is either positive or negative. Indeed it is argued that in risk assessment terms, safety culture is either a hazard or a safety enabler and should therefore be given close consideration.” (page 43)

The first sentence is contentious but those safety advocates will jump on this as an endorsement.

The report also includes a written criticism of some of the current approaches to workplace mental health.

“Unfortunately, solutions for the workplace are readily touted by the probably well-intentioned but often
uninformed ‘safety industry’. This industry is currently ‘selling’ a range of sometimes disconnected solutions to protecting workplace psychological health. These include resilience training, vague concepts of ‘wellness’ and the now infamous ‘colouringin rooms’. While these responses might be part of fulfilling the legal duty of ‘taking all steps reasonably practicable’ to ensure workers’ psychological health and safety, they are not sufficient and may even be harmful if implemented outside a systematic and integrated response. Systematic responses require risk assessments, the implementation of appropriate ‘risk controls’ and the consideration of workplace culture and mental health literacy.” (page 46)

It is interesting that law firms in Australia are producing the types of thought pieces that used to be released by large business advisory firms like PricewaterhouseCoopers and others. Corrs’ report is an example more of a business advice report than a legal discussion paper but the timing for this type of report from someone outside of the large accounting/auditing firms may not be a coincide. The current Mid Year Review is the third annual report from Corrs but its breadth is of note. It may be that the influence of the accounting/auditing firms is on the wane, particularly, since the Global Financial Crisis. Some journalists in Australia are paying these companies close attention. One of them, Michael West, recently published an article in which he asks the question – “who audits the auditors?”

These sorts of publications are very useful for OHS professionals as it takes us out of our comfort zones and reminds us of the bigger picture for the companies in which we work and for which we advise. It also places the legal basis of many of our arguments and positions in the real world of businesses.

Tripartite consultation of occupational health and safety (OHS) is largely a relic of the past. It remains in the structure of government policy formulation and in workplace safety legislation but, largely due to the decline in trade union presence in Australian workplaces; OHS consultation occurs more linearly than through formalised tripartism.